Citation Nr: 1206800
Decision Date: 02/24/12 Archive Date: 03/09/12
DOCKET NO. 10-30 532 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the Veteran's death.
2. Entitlement to nonservice-connected death pension benefits.
REPRESENTATION
Appellant represented by: to be clarified
WITNESSES AT HEARING ON APPEAL
Appellant and R.B.
ATTORNEY FOR THE BOARD
S.J. Janec, Counsel
INTRODUCTION
The Veteran had recognized guerilla service from October 1943 to May 1945. He died in June 1988. The appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Manila, the Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA).
The July 2009 rating decision denied service connection for the cause of the Veteran's death. The appellant filed a notice of disagreement with the determination in March 2010 and she was provided with a statement of the case in June 2010. She perfected her appeal by submitting a VA Form 9 in July 2010.
The July 2009 rating decision also denied entitlement to accrued benefits. Notice of the determination was issued on July 29, 2009. Statements in her VA Form 9, Appeal to Board of Veteran's Appeal, received on July 19, 2010, (substantive appeal on the issue of entitlement to service connection for the cause of the Veteran's death) were also interpreted as a notice of disagreement with the denial of entitlement to accrued benefits. She was issued a statement of the case on this issue on February 2, 2011. However, a substantive appeal was not received on that matter, and the issue is not before the Board for appellate consideration, and will not be addressed in this decision.
The appellant and a witness testified at a personal hearing before the undersigned Veterans Law Judge at the RO in April 2011. A transcript of the proceeding is of record.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The July 2009 rating decision also denied entitlement to nonservice-connected death pension benefits, notice of which, as noted above, was issued on July 29, 2009. The VA Form 9, Appeal to Board of Veteran's Appeal, received on July 19, 2010, expressed disagreement with the July 2009 rating decision denial of entitlement to nonservice-connected death pension benefits. The appellant was informed in a November 2011 VA letter that the July 2009 decision pertaining to this benefit was final because her notice of disagreement had not been received by July 29, 2010. See 38 C.F.R. § 20.302(a). As such, no statement of the case was issued to the appellant pursuant to 38 C.F.R. § 19.26. The Board finds that the November 2011 RO letter is not correct, and that the appellant's notice of disagreement was timely, as it was received within one year of issuance of notice of the determination. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999).
In January 2012, the appellant submitted a statement to the RO that was forwarded to the Board. The statement noted that the appellant was informing the Board that her previous agent/representative had passed away and that she had appointed a new representative. A copy of the new appointment was not attached to the document. The appellant further stated that she was waiving RO consideration of the "additional evidence and records that [she was] submitting to the Manila Regional Office." However, no records were attached to the statement and no additional records were received from the RO. Consequently, a remand is necessary.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. The RO should ask the appellant to submit a new VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of her new agent, Mr. Philip Madlem.
2. The RO should ask the appellant to re-submit copies of the documents that she included with her January 2012 Statement in Support of Claim so that the record will be complete.
3. Issue a statement of the case pursuant to the July 19, 2010 expressed disagreement with the July 2009 rating decision denial of entitlement to nonservice-connected death pension benefits, notice of which, as noted above, was issued on July 29, 2009. Only if a substantive appeal as to the matter is received within 60 days of issuance of the statement of the case, (unless an extension of time has been granted), should the issue of entitlement to nonservice-connected death pension benefits be forwarded to the Board for appellate consideration.
4. Thereafter, if additional evidence has been received, readjudicate the issue of entitlement to service connection for the cause of the Veteran's death. If the benefit sought is not granted, a supplemental statement of the case should be issued, and the case should be returned to the Board for appellate review. If additional evidence has not been received, return the case to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).